Adam v. Boeve & Everett

[2008] QDC 15

[2008] QDC 15

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1343 of 2004

JENNIFER ADAM

Plaintiff

and

RONALD DEREK BOEVE

and

MIRIAM GRACE EVERETT

Defendants

BRISBANE

..DATE 29/01/2008

ORDER
CATCHWORDS: UCPR r214(2) - orders for particulars and disclosure on plaintiff's application in a proceeding characterised by long delays - costs dependent on plaintiff's ultimately succeeding.

HIS HONOUR:  This is an application by the plaintiff which may

get this embarrassingly protracted matter back on the rails.

It arises out of a contract said in the claim filed on 14

April 2004 to be dated the 19th of February 2000.  The notice

of intention to defend and the defence (inappropriately titled

as relating to a minor debt claim) was filed on 21 June 2004.

It makes allegations against a person identified as Gary

Shaw, "a real estate agent of the plaintiff."

At the time of an auction of property on the 19th of February

2000 the story told in the defence is that Shaw encouraged the

defendants to think it was open to them to bid at the auction

without being committed to sign an unconditional contract of

purchase, they wishing to "negotiate a conditional contract

that was subject to finance if the property was passed in at

auction."  Shaw is said to have bid $395,000 "on behalf of the

defendants" then pressuring them to sign an unconditional

contract and to hand over a cheque for 10 percent deposit.

The defence contends that Shaw was told funds were not

available to meet the cheque ultimately handed over and gave

some sort of assurance that it wouldn't be presented.

Particulars were sought by the plaintiff's former solicitors

in a request dated 19 July 2004.  Having perused that, I am

having some difficulty in appreciating the need for all of

those particulars, given that I understand from Mr Lambros

that the plaintiff had someone other than Shaw as agent

identified in the contract and contends that Shaw had no

standing whatever to bind her.

The request for particulars does not seem to have met any

challenge over the years as to its appropriateness, nor has

any challenge to its appropriateness been mounted today

by the defendant's representative, Miss Rabolio.  She is in

some difficulty because she is unable to get instructions from

the defendants, one of them at least being overseas.  She has

told the Court that steps are in train to permit her firm to

withdraw as their solicitors.

The application and supporting material got to the firm on 23

January, but was sent Express Post to the elusive clients last

Friday, according to Miss Rabolio.  On that basis delivery of

that material to the defendants could not be expected until

today, yesterday being a public holiday.

In the circumstances, I would not be inclined to fix the short

period proposed by Mr Lambros for provision of particulars of

seven days.  I propose to allow 21.  That may prove

insufficient, as Miss Rabolio suggests, if matters so develop

that the defendants bring new solicitors into the matter.  It

is possible to make contact with people overseas and I suppose

we have to assume that the defendants will be able to bring to

mind the events of the 19th of February 2000 and thereabouts.

Miss Rabolio alluded to other aspects of the case such as the

plaintiff having resold the property for a greater price than

$395,000 so that she has suffered no loss from some points of

view.  As I understand the law, that is by the by, given the

nature of a deposit as "an earnest to bind bargain."   The

advantageous resale would be beside the point.

Miss Rabolio has noted that the defendants are still awaiting

the plaintiff's reply, which was strictly out of time.  An

unanswered request for particulars is not a sufficient reason

for a plaintiff's failure to reply and it would seem to me,

without spending a lot of time on this issue, that sufficient

information was provided so that the plaintiff could have

sensibly responded to the "defence" or counterclaim, and

that too is all by the by.

The other aspect of the application seeks disclosure within

seven days.  Disclosure before the close of pleadings is

available only if the Court makes a special order under rule

214(2)(a).

I am not persuaded that the need for particulars is

sufficiently vital to make such a special order.  I am

prepared to order disclosure in terms of the ordinary time

allowed by the rules, which is 28 days after the close of

proceedings, by subrule (2)(c).

The Court's order will be in terms of the initialled draft.  I

will read it into these reasons.

1. That the defendants deliver to the plaintiff a list of

documents in accordance with rule 214 of the Uniform

Civil Procedure Rules within 28 days of the close of

pleadings.

2.  That the defendants deliver to the plaintiff further and

better particulars of the defendant's defence in

accordance with rule 157 of the Uniform Civil Procedure

Rules as requested by McCarthy Holzberger Solicitors on

19 July 2004 within 21 days from today.

1. That the plaintiff file and serve her reply and answer,

if any, within 14 days of provision of particulars.

1. That the plaintiff's costs of and incidental to this

application be her costs in the cause.

1. Liberty to apply.

I have added "liberty to apply" because things will probably

go wrong, Mr Lambros; the effect of the costs order is

that if you win your case you get your costs.

MR LAMBROS:  Understood, your Honour.

HIS HONOUR:  If it should turn out that Mr Shaw is the

plaintiff's agent, it may be that the defendants suffered some

sort of wrong.

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